Backpedal on sex-offender ban gets officials' attention

Dec. 5, 2012

Updated Aug. 21, 2013 1:17 p.m.

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Attorney Janice Bellucci, a state organizer for the non-profit group, California Reform Sex Offender Laws, assured the Lake Forest City Council during public comment Tuesday that if they left the ban in place, the likelihood of further lawsuits would be guaranteed. DAVID BRO, FOR THE REGISTER

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Lake Forest Mayor Kathryn McCullough challenged Orange County District Attorney Tony Rackauckas by asking the OCDA to pay 100 percent of all costs related to any legal action taken against the city of Lake Forest if the City Council voted to keep the ban in place. DAVID BRO, FOR THE REGISTER

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Orange County District Attorney Tony Rackauckas reacts during a heated exchange with Lake Forest Mayor Kathryn McCullough during Tuesday's city counil meeting. DAVID BRO, FOR THE REGISTER

Attorney Janice Bellucci, a state organizer for the non-profit group, California Reform Sex Offender Laws, assured the Lake Forest City Council during public comment Tuesday that if they left the ban in place, the likelihood of further lawsuits would be guaranteed.DAVID BRO, FOR THE REGISTER

A sudden about-face by Lake Forest officials on an ordinance barring registered sex offenders from parks is reverberating throughout the county as attorneys and city officials discuss whether the law is worth defending in court.

Faced with a federal lawsuit that could cost up to $250,000 to defend, Lake Forest on Tuesday decided it's not. City leaders instead repealed the law.

If the repeal gets final approval Dec. 18, the move would make the city the first to back away from a countywide trend toward increasing restrictions on registered sex offenders. Since mid-2011, the county and 15 Orange County cities have adopted laws barring sex offenders from public recreation areas.

The laws make it a misdemeanor for registered sex offenders to enter the public areas. A violation could result in up to $500 in fines and up to six months in jail. Lake Forest, Huntington Beach, Seal Beach and Costa Mesa passed the strictest bans, excluding temporary waivers allowed by other cities and the county.

LEGAL QUESTIONS

Those cities were named in a federal lawsuit filed Sept. 28 by an anonymous man – a registered sex offender who served his sentence more than 15 years ago and is now married with children – who alleges the bans violate his First, Fifth and 14th Amendment rights.

In addition, the Appellate Division of the Orange County Superior Court reversed the conviction of Hugo Godinez, a registered sex offender who admitted to entering Mile Square Park in Fountain Valley.

Godinez appealed the conviction, alleging the county ban is too vague and is trumped by state law. In its decision in favor of Godinez, the Appellate Division agreed state law takes precedence because it has previously passed laws concerning where registered sex offender can go. For example, state law bars from parks registered sex offenders on parole convicted of victimizing a child younger than 14.

The Appellate Division, citing the number of Orange County cities with similar ordinances, decided to refer the matter to the 4th District Court of Appeal. If it decides to review the case, its decision would have the power to set precedent, unlike the decision by the Appellate Division, according to Susan Schroeder, chief of staff at the District Attorney's Office.

The lawsuit and the Appellate Division decision played a role in Lake Forest's decision to drop the ban. It is also the reason sheriff's deputies in Lake Forest are no longer enforcing the ordinance, Lt. Pat Higa said. Enforcing them could open up the city to "liability and additional litigation," he said. Sheriff's deputies are also no longer enforcing the ordinance on county land as a result of the ruling, he added.

Chapman University School of Law Professor Lawrence Rosenthal said the issue is "an extremely difficult area of the law. The outcomes are very hard to predict because we have in California this notion that cities that adopt their own charter are entitled to govern themselves the way they see fit."

The question courts will ultimately answer is whether people who commit a sex crime should be regulated afterward on the state or the local level, he said.

"Nobody thinks they recidivate on a different way based on where they live. Nobody really thinks it's a local problem," Rosenthal said. "And that's why it's a little more difficult for cities to explain in these kind of cases as opposed to other land use regulations."

CITIES REVIEW OPTIONS

No other Orange County cities have said they plan to repeal their bans, but many are waiting on legal advice to move forward.

Following the district attorney's advice has placed Seal Beach in a difficult situation, Mayor Mike Levitt said.

"Can we afford to stand on what we think is right, or do we have to watch the money for the entire city?" he said. "Any time you spend money on litigation, you don't have that money to pave streets, or to fix lighting or to cut down trees."

In a down economy, cities need to be practical, he said.

Repealing the ban "is probably the smartest thing Lake Forest could have done, because the amount of litigation possible could have easily bankrupted (the) city," he said. "This is not a good economic time to be spending a lot of money on litigation."

Levitt said the Seal Beach council will discuss the federal lawsuit at its Monday meeting.

Costa Mesa Councilwoman Wendy Leece said she is waiting on advice from the city attorney.

Huntington Beach City Attorney Jennifer McGrath said she is following court decisions related to the bans but has not been directed by the council to make any changes to the law.

Dennis Riordan, attorney for the man suing the cities in federal court, said the Appellate Division ruling should convince cities to rescind the law.

"It certainly doesn't make any sense for Lake Forest or any other municipality to fight a federal civil rights lawsuit in defense of ordinances that the state court has already found are illegal," he said. "In fact, every municipality in the county with one of these ordinances would do well to repeal it now ... before they incur the cost of further litigation."

The money the city could spend defending the federal lawsuit would pale in comparison to the stakes at play in other lawsuits with which the city has been threatened, Lake Forest City Attorney Scott Smith said.

Janice Bellucci, president of California Reform Sex Offender Laws, told the council Tuesday that she has two plaintiffs ready to sue the city if it does not approve the repeal. One plaintiff plans to seek roughly $36 million, including civil damages, Smith said.

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